Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

Friday, March 03, 2017

Chapter 15 (Chapter Summaries) "The Legal Structures of Federalism: The 9th and 10th Amendments of the Federal Constitution" in Elements of Law and the United States Legal System

The work made sense as a century of legalization (here and here) and judicialization (here and here)
forces more and more people worldwide to bump up against aspects of
aspects of the U.S: legal system. The system is a complex amalgamation
of distinct approaches to legalization, and the mechanics of its
implementation, that tends to be mystifying to everyone,
even individuals trained in law elsewhere. Most people tend to be hard
pressed to explain the U.S. legal system either
to non-lawyers or to foreigners, even sophisticated foreign lawyers or
jurists, or for that matter to each other. Most would find it difficult
unravel the distinct strands of law in the United
States, each of which deeply embedded within their own internally
coherent systems of
generation, interpretation and application. The object of the book is
to make the elements of law within the U.S. legal system more accessible
and easier to invoke.

This set of posts provide interested readers with a more detailed
description-summary of each chapter along with teaching objectives.
After these descriptions I will circulate a chapter by chapter based
draft Teacher's Manual. Comments welcome for all.

The work is divided into three parts and a historical preface. The Preface
traces the origins of the materials and its objectives. It suggests as
well the challenges of teaching normative or framing concepts around a
profession based on the training in technique; in effect the book seeks
to expose the underlying normative structures and patterns well embedded
within the techniques that tend to center the study of law and legal
subjects. Part I: What is Law? An Introduction, is
divided into two chapters. Chapter 1 sets out a detailed roadmap for
the materials built around an introductory problem that highlights the
book's major themes. Chapter 2 then introduces the principal vocabulary,
institutions and forms, starting with the issue of the connection
between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7),
then focuses on the principal components that together make up the U.S.
legal system. Its five chapters each focus on three forms of law
sub-systems. The first includes law articulated by the courts--common
law and equity. The second touches on law articulated by
legislatures--statutes and administrative regulations. The third focuses
on emerging systems of governance beyond the state--private regulation,
hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Governmentmoves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law.
Its four chapters first consider the fundamental theories that tie law
to the government, the role of rule of law concepts, the development of
hierarchies of law within the domestic legal order of the United States
and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States
then considers the legal rules through which governmental regulatory
authority may be exercised. If Part III spoke to the issue of the
governmentalization of law, Part IV touches on the legalization of government.
Its four chapters considers the fundamental principles of separation of
powers and checks and balances, the constraining of administrative
discretion, popular law making through initiative and referendum, and
the legal structures of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their
engagement with law. The first of its three chapters touches on the
doctrine of judicial review and the legalization of the authority to
interpret and apply law beyond common law. The second of its chapters
then considers the techniques of judicial interpretation and their
relationship to judicial legitimacy. The last of the chapters then
considers the binding nature of judicial opinion, especially the legal
effect of judicial decisions interpreting statute.

Chapter 15.

The Legal Structures of Federalism: The 9th and 10th Amendments of the Federal Constitution

A. Introduction

B. Problem 15

--U.S. Constitution Amendments IX, X --South Dakota v. Dole

C. The Federal-State Interplay, the 9th and 10th Amendments of the Federal Constitution

The student has been considering the way that law shapes the exercise of politics within the federal government. The legalization of politics is are the fundamental premise of the American Republic. The judicialization of the management of this legalized politics is its grounding technique. Within the federal government, this legalization-judicialization produces a cage of horizontal constraints on the exercise of governmental authority, which is divided into its executive, legislative and judicial components.

The student has come to understand that this legalization does not merely manage the exercise of political power through law; legalization also has begun to define the relationship between the organs of state power and the availability of protection of fundamental rights. That relationship itself evidences the great tension between the embrace of notions of popular sovereignty in the United States and its expression only through law (starting with the constitution as its highest expression) on the one hand, and the embrace of the principle that government is formed out of higher law which itself may not be constrained by government and its law (even its constitution).

In the United States the cage of law also has a very pronounced vertical dimension. That vertical dimension has two parts. The first is the construction of a law of exercising administrative power by agencies to which power to assert quasi executive, legislative and judicial power has been delegated. That was the subject of consideration in Chapter 14. The other is federalism, which is the subject of this Chapter. Federalism constitutes a cluster of political premises, given form through law that posits that the political power vested in the general government did not represent the entire scope of exercisable political power. What remained after the delegation to the federal government, all residual political power, was reserved to the states. That reservation of power was residual in the sense that it consisted of all of the power not explicitly ceded to the federal government in the constitution. In this sense, federalism constitutes the principal method for expressing the vertical constraints on the authority of either federal or state governments to make and enforce law. Vertical constraints on the federal government are not merely suggested by the residuary power of the states. Federalism is itself an expression of the popular will to organize the state, one in which popular sovereignty might remain potent. Neither the state nor the federal government were ceded all of the political power of the political community for the benefit of which government was created. But this ultimate residual reservation is both undefined and unspecified in the legal structures giving governments their form in the United States. Though held by the people, those principles of vertical residuary power is suggested by the 9th and 10th Amendments to the federal constitution.

The federal constitution does not refer to federalism; it is nowhere mentioned as such in the federal constitution. But the constitution, by its terms, embodies the federalism concept in the way in which it structures the relationship between the general government—of limited powers over the territories of all of the states, and of the states themselves over portions of the territories of the United States. Originally quite broad in scope, the extent of the power reserved to the states has been shrinking, especially since the end of the beginning of the 20th century. And the nature of the means through which states may preserve their legislative and governance prerogatives has been changing as well. It is to those issues of joint lawmakers over a single territory—the notion of federalism and its legalization, that the materials in this chapter consider.

Traditionally, these vertical power relationships were politically constrained by the structure of the federal government itself and the politics of its operation. The heart of that structural political constraint was meant to be built into the organization of the Senate, which was to represent the political interests of the states in the federal government. Effectively, in theory at least, before the beginning of the 20th century federal legislative action could not be undertaken without the consent of a majority of states represented in the Senate (Article I, § 3, Clauses 1 and 2). Senators then were selected by their respective states, and ostensibly beholden to the state leaders who help select the Senator. That structural constraint depended on the ability of states to control their Senators. Our early history suggested that many states over many years might not have taken advantage of the structural protections afforded under the constitution. “Reform” was both inevitable and of a legal character.

That relationship has been altered with the adoption of the 17th Amendment, which provided for the direct election of senators. The constitutional change that brought the direct election of Senators appeared to increase the necessity for a greater legalization of the relationship between the federal government and the states as well. Yet, at the same time, the belief in the power of political structures to serve as a sufficient restraint continued to have substantial influence in law and policy. It is to that legalization that this chapter turns. For that purpose, we consider the legal position of the subsidiary units of government in the United States and their relationship to federal power. This relationship is drawn through a legalization of the principles of “federalism.” Those principles, themselves, suggest the elasticity of American law. In the course of the reform of federalism from the end of the 19th century, the power of the 9th and 10th Amendments to serve as independent sources of popular power has withered. Today both are understood as no more than truisms, whose effects are felt in the form of judicial principle in interpreting the limits of the exercise of federal governmental authority on a case by case basis.

With this chapter we end our short review of the architecture of the American law-state. We have come to understand that law occupies a space both within and outside the government (and to some extent outside the state as well). We have seen how American “higher law” has been used to structure the government, constrain the scope of its substantive powers and manage the application of politics to the operation of the state apparatus through law. We have seen how the power of government has been fractured horizontally in three functionally distinct categories, and vertically between a general government of specified powers and a residual power of government exercised by states whose own residual power is made subordinate to and exercised under the leadership of the general government. We have examined the application of notions of rule of law not just to understand the limits of government’s power (under law) to deprive individuals of their life, liberty, or property interests, but also how law has been used as structural constraints on politics. That “higher law” of the constitution is grounded in fundamental principles—separation of powers, checks and balances, and federalism—that are in turn principled manifestation of fundamental political premises of the American union, a premise that government must be efficient, but also that governmental power must not be aggregated sufficiently to make tyranny (arbitrary government not grounded on law) possible. To that end we have begun to understand the political use of law by courts to ensure fidelity to the legal basis of government. And we have been introduced to two important interpretive approaches used by courts—formalism and functionalism. These we have explored in the application of law to resolve disputes about the boundaries of legislative and presidential power, of the place of administrative agencies within the divided power system of the federal government, and the tension between the extent of the power of direct or popular democracy and federal constraints on law making (even when a majority of people desire it).

Learning Objectives.

(1) The student should be familiar with the 9th and 10th Amendments of the Constitution.

(2) The student should be able to consider whether federalism in the United States should be a dynamic or a static concept by working through a problem.

(3) The student will examine the elasticity of the concept of federalism and the residual nature of structural federalism protection through a consideration of the Commerce Clause and its use and interpretation by Congress and the courts.

(4) The student should be aware of the constraints and limitations of federalism and its effects on State and federal power through a reading of Morrison v. United States and Gonzalez v. Raich.

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Copyright; Citation and Attribution:

All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.